Estate of Burton W. Kanter, Deceased, Joshua S. Kanter, Executor, and Naomi R. Kanter, et al. - Page 429

                                                 -71-                                                   
                  B.  Comments Regarding the Introductory Statement and Brief                           
                  Introduction of The Five                                                              
                  The first two paragraphs of the introductory statement in                             
            the STJ report regarding The Five do not include findings of fact                           
            but rather represent a statement of the Special Trial Judge’s                               
            understanding of respondent’s theory of the cases.  A review of                             
            respondent’s posttrial briefs reveals that the Special Trial                                
            Judge misunderstood and/or misstated respondent’s position.                                 
                  As an initial matter, the STJ report stated that it was                               
            respondent’s contention The Five made payments “In return for                               
            Ballard’s and Lisle’s services”.  This statement suggests that                              
            respondent asserted The Five were aware Ballard and Lisle were                              
            using their influence to steer business to them and The Five                                
            intended to compensate Ballard and Lisle for their actions.  To                             
            the contrary, respondent’s theory regarding the manner in which                             
            the kickback scheme was carried out is articulated in                                       
            respondent’s Opening Brief at 568-567, as follows:                                          
                  Suppose A says to B, “If I introduce you to C, and you                                
                  do business with C’s company, then I want 50% of                                      
                  whatever money you make on the deal.”  If B did                                       
                  business with C, and, in turn, paid A 50% of what he                                  
                  made, that is not a kickback.  A received a finder’s                                  
                  fee.  However, further suppose, A went to C and said,                                 
                  “Whatever business you give to B, I will give you a                                   
                  percentage of the money B gives to me.”  In this                                      
                  situation, B may not even know about the arrangement                                  
                  between A and C.  B may believe he is getting business                                
                  from C because he does good work.  Nevertheless,                                      
                  respondent maintains that when C gives business to B                                  
                  with the understanding that he will eventually receive                                
                  money generated by that business from A, that is a                                    
                  kickback.                                                                             





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